Bills Digest No. 132 1999-2000

Census Information Legislation Amendment Bill 2000

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

To change the
name of the 'Australian Archives' to the 'National Archives of
Australia' and to provide for the retention of the forms created by
the 2001 Census (including the names of respondents), if a
respondent agrees to this retention.

The Report Saving our census and preserving
our history : a report on the inquiry into the treatment of
name-identified census forms was produced by the House of
Representatives Standing Committee on Legal and Constitutional
Affairs, which was chaired by Kevin Andrews, in May
1998.(1) This Bill implements aspects of some
recommendations made by the Committee, most particularly the first
part of Recommendation 1:

Recommendation 1

The Committee recommends that name-identified
information contained in forms from future censuses be
retained.

The Committee further recommends that specific
legislation be implemented to provide for the retention of
name-identified information from all future
censuses.(2)

As is apparent from both the legislation and the
Second Reading Speech, the Government has decided to implement only
aspects of this Recommendation, and will wait to see the results of
this initial exercise before moving to implement longer-term
legislation. Furthermore the Government has decided to introduce an
element of personal choice regarding whether information is
retained, a choice which the Committee did not offer, instead
recommending that Census information be kept, whether or not
respondents agreed with this approach. The Report was unanimous,
with representatives from both the ALP and the Coalition
participating as Members.

There are, however, clearly contentious issues
raised by the proposal to keep name-identified Census forms. For
example there may be a clash of interests between researchers in
the field of genealogy and history, who are interested in the
retention of such data as it is of long-term research value, and
statisticians and others who rely on the accuracy of data generated
by the Australian Bureau of Statistics ('the ABS' or 'the Bureau')
and believe that the quality of the data collected will be
compromised by any moves to modify the currently high levels of
privacy protection offered to ABS data.

The threat posed to data quality would be due to
the fact that, according to the ABS, who have an unparalleled
experience in conducting surveys and censuses, the public do not
support the retention of Census forms because of concerns about
privacy and confidentiality.(3) The ABS argued before
the Committee that the integrity of the data collected would be
compromised if people are deterred from providing adequate or
accurate data by their concerns about privacy. Data from the Census
is used for a large number of purposes, including the Commonwealth
Grants Commission in determining State/Federal funding and the
Electoral Commission in determining electoral divisions. At the
moment name-identified data collected from a Census is destroyed
after being used to generate statistical data.

The Report showed an unusual degree of
scepticism to the views of the ABS, both calling into question
evidence given by other Commonwealth agencies and Departments on
the basis that they had been unduly influenced by the
ABS(4) and also suggesting that an attitudinal survey
the Bureau had commissioned could be perceived as biased against
the retention of such data.(5) The Report did, however,
acknowledge that ACNielsen-McNair, which did a
second survey which had been redesigned 'with the stated aim of
removing any perceived bias', came to the same conclusion as the
initial survey, i.e. that the public do not support the retention
of Census forms.(6)

Clearly there are privacy implications in a
decision to retain named Census data. The protections offered such
data by the amending legislation, while strong (offering protection
even against court orders) and long (99 years), could nevertheless
be changed by subsequent amending legislation. Essentially once
databases are created any promise of confidentiality is subject to
future political climates which cannot be guaranteed to be as
concerned with privacy as the current Parliament may be.

These concerns, however biased the ABS may or
may not have been, do undoubtedly exist, but the Committee gave a
clear preference to the views of historians and genealogists over
that of statisticians. In part this would seem to be due to a
belief that the risks to data integrity are not so great, and in
part it is due to a belief that:

a properly managed and comprehensive public
education program, promoting the benefits to the community of form
retention for future research, would assist in eliminating any
potential reduction in public cooperation with the census because
of concerns about privacy.(7)

Thus the benefits or disadvantages of the
changes proposed by the Committee would depend heavily on the
strengths or weaknesses of this public education campaign. A public
education campaign will have to address fundamental questions of
trust between citizens and the state, amongst other things.

The option taken by the Government varies
significantly from that recommended by the Committee. It allows for
a choice to be made by respondents to the Census as to whether
their named data is retained or not. This should address some of
the concerns the ABS has expressed over data quality. However,
depending on the response to the option of retaining named data, it
could also compromise the potential value of the data retained as a
result of the Census by making it a less comprehensive
database.

Admittedly those who are so worried about
inroads to their privacy by the state as to refuse to provide
accurate data, or who fail to return their form at the
moment, have not been reassured by the proposition that
confidentiality is currently respected. Since the distrust of state
authorities may already lead to data quality being
compromised, it is unclear whether the prospect of such data being
retained in a non-anonymous form will lead to a significant
deterioration of data quality, particularly when the choice is
given as to whether that data is kept. In fact, arguably, offering
the choice of whether someone accepts data being retained in a
'named format' may increase people's levels of comfort and promote
a belief that the state will not retain that information unless
authorised to do so.

In a sense many of these issues are
imponderable. They depend on predictions as to community behaviour
that are not necessarily susceptible to qualitative surveys (or so
the Report would seem to have concluded in response to ABS
concerns)(8) and it may be that only practical
experience will demonstrate whether such moves compromise data
quality. Certainly the fact that data will only be retained when an
individual has consented to the Census form's retention should
alleviate some privacy concerns.

Schedule 1 of the Bill makes
changes to the Archives Act 1983 ('the Archives Act') and
the Census and Statistics Act 1905 ('the Census and
Statistics Act'). The changes to the Archives Act introduce a new
category of information held by the Archives, i.e. '2001 Census
information' and create certain exceptions to the general
operations of the Archives Act regarding this information. By
changes proposed in item 2 of Schedule 1 2001
Census information is not subject to the general rules of the
Archives regarding the open access period (which generally starts
30 years after the year in which the information was deposited) but
instead has a period of closed access of 99 years. Item
2 also exempts 2001 Census information from provisions in
the Archives Act which would usually allow a Commonwealth Minister
to provide for access to records before the open access period
begins after 30 years (section 56 of the Archives Act 'Arrangements
for accelerated or special access').

Item 3 inserts new and
comprehensive provisions to prevent the release of 2001 Census
information by Archives officers, including preventing the
information from being released under a court or tribunal order and
preventing the application of catch-all section of the Archives Act
which provides for access to information held by the Archives under
the law (Archives Act section 58 'Access to records apart from
Act').

The Census and Statistics Act is amended by
item 5 to provide for Census forms in 2001, which
are name identified, to be transferred from the ABS to Archives if
a person has given consent to this transfer. 2001 Census
information (i.e. name-identified forms) is also given protection
from disclosure by the Statistician or an officer(9)
before the 99 year period has expired (item
6).

Schedule 2 proposes amendments
to the Archives Act which would change the name of the Australian
Archives to the National Archives of Australia. This includes
changing the titles of the Advisory Council on Australian Archives
and the Director-General of Australian Archives to reflect the new
nomenclature.

The wording of item 5 of Schedule
1 ensures that the Statistician can transfer 2001 Census
information to the custody of the Archives 'in a form and manner
agreed by the Statistician and the Director-General of the
Archives.' This leaves an issue raised by the Report, as to what
form the 2001 Census information should be kept in, to be resolved
by administrative decisions. There had been evidence given to the
Committee that the cost of retaining the original paper forms was
significant. In fact the Committee concluded that the cost rendered
such an option not 'feasible'.(10) Alternatives were
microfilm or electronic data. Electronic data was the cheapest
option and the one recommended by the Committee. However it was
also the format which could result in the greatest privacy and
confidentiality concerns. The Committee did, however, recommend
that only government personnel should be used to 'film, process or
otherwise handle census records'.(11)

Interestingly a further recommendation of the
Committee was not agreed to. This recommendation was that certain
medical researchers undertaking epidemiological research should be
given indirect access to name-identified data by requesting the ABS
to do certain research into the data which would require
name-identification (although, according to the Committee's
recommendations, the researchers were not to have been given data
which could have led to identification of individuals, only
aggregated information).(12) By removing the possibility
for this research to take place the proposed legislation could
remove some of the incentives for pursuing the option of retaining
Census data.

Saving our census and preserving our history: a report on
the inquiry into the treatment of name-identified census
forms, Andrews, Kevin. Parliament of Australia. House of
Representatives Standing Committee on Legal and Constitutional
Affairs, Canberra, 1998.

Ibid., p. 136.

Ibid., p. 41.

Ibid., p. 65.

Ibid., p. 63.

Ibid., p. 64.

Ibid., p. 129.

Ibid, p. 129. See also the evidence presented by Professor
Sless at p. 64.

Terms defined by the Census and Statistics Act 1905 by
reference to definitions in the Australian Bureau of Statistics
Act 1975.

Saving our census and preserving our history: a report on
the inquiry into the treatment of name-identified census
forms, op cit., p. 115.

Kirsty Magarey
7 March 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.

Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.